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Sheikh Khoorshed HosseIn and ors. Vs. Nubbee Fatima and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in(1878)ILR3Cal552
AppellantSheikh Khoorshed HosseIn and ors.
RespondentNubbee Fatima and ors.
Excerpt:
suit for partition - execution--limitation--right of co-sharer in partition--suit to enforce decree. - .....limitation.2. with regard to the first point, we arc of opinion that a decree for partition is not like a decree for money or for the delivery of specific property, which is only in favour of the plaintiff in the suit. it is a joint declaration of the rights of persons interested in the property of which partition is sought, and having been so made, it is unnecessary for those persons who are defendants in the suit to come forward and institute a new suit to have the same lights declared under a second order made. it must he taken that a decree in such suits is a decree, when properly drawn up, in favour of each shareholder or set of shareholders having a distinct share. in the present instance there being fortunately only two parties, there was no room for ambiguity in the drawing up of.....
Judgment:

Ainslie, J.

1. In special appeal it is contended that the defendant is not entitled to execute the decree at all; and if entitled, that she is haired by limitation.

2. With regard to the first point, we arc of opinion that a decree for partition is not like a decree for money or for the delivery of specific property, which is only in favour of the plaintiff in the suit. It is a joint declaration of the rights of persons interested in the property of which partition is sought, and having been so made, it is unnecessary for those persons who are defendants in the suit to come forward and institute a new suit to have the same lights declared under a second order made. It must he taken that a decree in such suits is a decree, when properly drawn up, in favour of each shareholder or set of shareholders having a distinct share. In the present instance there being fortunately only two parties, there was no room for ambiguity in the drawing up of the decree.

3. On the question of limitation, we think that it is impossible, in a case like this, to hold that the execution proceedings taken by either one shareholder or the other are anything but proceedings on account of both the shareholders. The necessary result of those proceedings was to divide off the share of the defendant, and while this was going on at the instance of the plaintiff, it would have been merely superfluous for the defendant to have put in an application to have the same thing done at her instance. Therefore, we think that it must ho taken that the proceedings in execution earlier than 1870 have the same effect as if they had been originated in the name of the defendant, consequently limitation does not apply.

4. The appeal is dismissed with costs.


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